New Bill Would Upend State Judicial System

Legislation introduced this week by Senate Finance Committee Chair Randy McNally, R-Oak Ridge, would make sweeping changes to the way state courts are managed, judges are appointed and judicial discipline is administered, Gavel to Gavel reports. Specifically, the bill, SB 2322, would transfer the Administrative Office of the Courts (AOC) to the comptroller of the treasury; replace the Judicial Nominating Commission with a body chosen by the governor and legislative leaders that would suggest replacements for vacancies due to death or resignation; disband the Judicial Performance Evaluation Commission, forcing judges to stand for contested elections; and disband the Board of Judicial Conduct in favor of a new body comprised of appointees from the governor and legislative leaders. The bill also would make all AOC and Board of Professional Responsibility documents open to public inspection.

Finally, it would prohibit judges from extending filing deadlines in death penalty cases and assess fines on government-appointed lawyers who later are found to have provided ineffective counsel in capital cases. Use TBAImpact, TBA's new legislative tool, to see the status of the bill and let the General Assembly know how this proposal negatively impacts the administration of justice.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
04 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer.


TN Court of Appeals

IN RE: JOCILYN M.P.

Court: TN Court of Appeals

Attorneys:

Joshua Hedrick, Knoxville, Tennessee, for the appellant, Joshua A.P.

Dawn Coppock, Strawberry Plains, Tennessee, for the appellees, Chloe S.K. and Timothy A.K.

Charlotte K. Tatum, Knoxville, Tennessee, Guardian Ad Litem for Jocilyn M.P.

Judge: SWINEY

In August of 2012, Chloe S.K. (“Mother”) and Timothy A.K. (“Step-father”) filed a petition seeking to terminate the parental rights of Joshua A.P. (“Father”) to the minor child Jocilyn M.P. (“the Child”) and to allow Step-father to adopt the Child. After a trial, the Trial Court entered its Final Order Terminating Parental Rights on August 19, 2013 terminating Father’s parental rights to the Child after finding and holding, inter alia, that clear and convincing evidence existed of grounds to terminate Father’s parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102 (1)(A)(iv) for both willful failure to support and for wanton disregard, and that clear and convincing evidence was proven that it was in the Child’s best interest for Father’s parental rights to be terminated. Father appeals the termination of his parental rights. We affirm the termination of Father’s parental rights to the Child.


CHRISTOPHER VANCE SMALLING v. SARAH REBECCA SMALLING

Court: TN Court of Appeals

Attorneys:

Ricky A.W. Curtis, Blountville, Tennessee, for the appellant, Christopher Vance Smalling.

Sarah Rebecca Smalling, pro se appellee.

Judge: SWINEY

We granted Christopher Vance Smalling’s (“Husband”) application for extraordinary appeal pursuant to Tenn. R. App. P. 10 to consider issues related to his suit for divorce from his wife Sarah Rebecca Smalling (“Wife”). This divorce case reached an unexpected impasse when the Chancery Court for Sullivan County (“the Trial Court”) refused to set a hearing in the matter until a Temporary Parenting Plan concerning the parties’ minor child was entered. Husband appeals, arguing both that he had complied with local rules by submitting a suitable Temporary Parenting Plan and that state law does not require the filing of a Temporary Parenting Plan in circumstances like those of this case. We hold that the local rules are in conflict with Tenn. Code Ann. § 36-6-403 because they require the filing of a written Temporary Parenting Plan even though the statute specifically states this is not required if the parties agree, as in this case, to a Temporary Parenting Plan. We also hold that even if we err in our judgment that Tenn. Code Ann. § 36-6-403 conflicts with and overrides the local rules, Husband complied with the local rules by submitting a Temporary Parenting Plan. We reverse the Trial Court.


TERESA VINCENT v. JERRY S. JOHNSTON, SR.

Court: TN Court of Appeals

Attorneys:

Andrew J. Brown, Cleveland, Tennessee, for the appellant, Jerry S. Johnston, Sr.

Travis D. Henry, Cleveland, Tennessee, for the appellee, Teresa Vincent.

Judge: FRIERSON

This boundary line dispute involves a five-acre parcel of real property (“Disputed Property”) in McMinn County to which the petitioner and respondent, who own adjoining parcels, both claim ownership. The petitioner filed a petition to quiet title, requesting that she be declared the owner of the Disputed Property, and for declaratory judgment as to damages she claimed as a result of the respondent’s alleged trespass, encroachment, and harvesting of timber. The respondent filed a counter-petition, alleging that he was the rightful owner of the Disputed Property; raising affirmative defenses of waiver/estoppel, champerty, and adverse possession; and requesting damages for the petitioner’s alleged encroachment and destruction of boundary markers. Following a bench trial, the trial court declared the petitioner the owner of the Disputed Property, dismissed the respondent’s counter-petition, and dismissed all claims for damages. The respondent appeals. We affirm the trial court’s finding that title to the Disputed Property is vested in the petitioner. We determine, however, that the respondent has established the statutory defense of adverse possession, pursuant to Tennessee Code Annotated § 28-2-103 (2000), only to the extent that certain improvements encroach upon the Disputed Property, and we reverse upon this ground. We remand to the trial court for determination as to the extent of the encroachments. We affirm the trial court’s judgment in all other respects.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. CHAD RICHARD DIETZ

Court: TN Court of Criminal Appeals

Attorneys:

Donna Orr Hargrove, District Public Defender; Michael J. Collins, Assistant Public Defender; and William J. Harold, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Chad Richard Dietz.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Chad Richard Dietz, pled guilty to the Class B felony offense of initiation of a process intended to result in the manufacture of methamphetamine. There was no agreement between the State and Defendant as to the sentence. Following a sentencing hearing, Defendant’s counsel specifically requested the trial court to impose a sentence of split confinement comprised of 365 days in jail with probation transferred to Alabama, and to include rehabilitation for alcohol and drug abuse. The trial court instead ordered a sentence of eight years and six months of confinement in the Tennessee Department of Correction. In this appeal, Defendant argues that the trial court should have ordered his sentence to be served in the Community Corrections program. Following a thorough review of the record and the briefs, we affirm the judgment of the trial court pursuant to Rule of the Court of Criminal Appeals of Tennessee 20.


STATE OF TENNESSEE v. ALEX W. GIBSON

Court: TN Court of Criminal Appeals

Attorneys:

Stephen M. Wallace, District Public Defender; and Steven D. Bagby, Assistant District Public Defender, Blountville, Tennessee, for the appellant, Alex W. Gibson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Barry Staubus, District Attorney General; and Kaylin Render, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Pursuant to his guilty-pleaded convictions, appellant, Alex Wayne Gibson, was sentenced to four years, suspended to probation, for aggravated burglary and several misdemeanor charges. A probation violation warrant was issued that alleged several technical violations as well as a failed drug screen. Following a probation revocation hearing, the trial court revoked appellant’s probation and ordered execution of the four-year sentence. It is from this order that he now appeals. Upon our review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. ANTONIO MARQUES PEEBLES

Court: TN Court of Criminal Appeals

Attorneys:

Emma Rae Tennent (on appeal); and Chad Hindman and J. Michael Engle (at trial), Nashville, Tennessee, for the appellant, Antonio Marques Peebles.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Bret Gunn and Megan King, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Antonio Marques Peebles, appeals his Davidson County Criminal Court jury conviction of aggravated robbery, claiming that the trial court erred by denying his motion to suppress the statements he made to law enforcement officers and the evidence obtained following his arrest, that the evidence was insufficient to support his convictions, and that the sentence imposed was excessive. Discerning no error, we affirm.


STATE OF TENNESSEE v. MICHAEL A. TALLEY

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Brent Cooper, Assistant District Attorney General, for the appellant, State of Tennessee.

Claudia S. Jack, District Public Defender; and Robin Farber, Assistant Public Defender, Columbia, Tennessee, for the appellee, Michael A. Talley.

Judge: WOODALL

This is an appeal as of right by the State after dismissal of charges following the trial court’s order which granted the motion to suppress evidence filed by Defendant, Michael A. Talley. The evidence which was ultimately suppressed had been seized pursuant to a search warrant. Defendant’s motion asserted that the affidavit filed in support of the issuance of the search warrant lacked probable cause to justify the search. Following a hearing, the trial court took the matter under advisement. Ultimately the trial court entered an order granting the motion to suppress and subsequently entered an order which dismissed the cases in Docket No. 21635 in the Circuit Court of Maury County “[d]ue to suppression of the evidence.” After a thorough review of the law and the entire record, we affirm the judgment of the trial court.


TN Attorney General Opinions

Pedestrian and Vehicular Use of Marked Bicycle Lanes

Court: TN Attorney General Opinions

Date: 2014-01-23

Opinion Number: 13


Judge Eisenstein to Retire in September

Davidson County General Sessions Judge Daniel B. Eisenstein has announced he will retire Sept. 1 after serving on the bench for a decade. Eisenstein has been a trailblazer in the area of mental health treatment in the criminal justice system, presiding over the county’s Mental Health Court since taking office. Prior to being elected judge, Eisenstein was a principal in the Law Office of Eisenstein, Moses & Mossman, where he maintained a general practice. In his announcement, Eisenstein said he plans to remain involved in civic activities, including those involving mental health issues.


Legal Aid Names 2014 Community Fundraising Chairs

The Legal Aid Society of Middle Tennessee and the Cumberlands (LAS) has announced that Linda and Art Rebrovick will serve as the 2014 community co-chairs of its annual Campaign for Equal Justice fundraising initiative. The community chairs focus on non-legal donors in Davidson and Williamson counties. Linda is CEO of Consensus Point and co-founder of Evolve Women. She serves on a variety of corporate and nonprofit boards. Art is president and CEO of Compass Executives and lead director of the Bank of Nashville. He is a board member and past president of the Turnaround Management Association and a member of Legal Aid’s Community Advisory Council. Read more in a release from LAS.


Case of 6th Circuit Judge Referred to DOJ

This past summer, federal Judge Boyce Martin Jr. of Kentucky announced he would retire from the 6th Circuit Court of Appeals and repay nearly $140,000 in travel expenses to avoid an ethics investigation. But documents just released reveal that his case will be referred to the U.S. Justice Department by the Committee on Judicial Conduct and Disability of the U.S. Judicial Conference, the ABA Journal reports. In making the referral, the committee also refused a request that Martin’s name not be disclosed. Commenting on the case, University of Pittsburgh law professor Arthur Hellman said the referral to the Justice Department was “quite unusual” and "stunning." Others, including Judge Martha Craig Daughtrey, praised Martin's legacy. A senior member of the court, Daughtrey said Martin had a “stellar legacy” and that “his character and integrity are beyond question.”


Nashville Lawyer Named to Election Panel

The Tennessee Senate Republican Caucus has appointed Thomas W. Lawless to the state Registry of Election Finance, WDEF News 12 reports. He replaces Darlene McNeece who had been on the board since 2002. A former chairman of the Davidson County Republican Party, Lawless was a founding member of the Nashville Chapter of the Federalist Society and served as its first president. He is currently chair of Tennessee's Judicial Nominating Commission. The Tennessee Registry of Election Finance was created by the General Assembly in 1989 to oversee compliance with campaign finance laws and required disclosures.


DLI Class Holds First Session at Leadership Conference

The law student members of the 2014 Diversity Leadership Institute met for their first session this past weekend as part of the TBA's Leadership Conference. The group joined legal leaders from across the state to learn about TBA President Cindy Wyrick’s key public service initiative for the year -- the Senior Law Handbook; youth courts in the state; legislation of interest to lawyers; and a new grassroots advocacy tool for communicating with lawmakers. Class members also held separate sessions that featured a keynote address by Tennessee Court of Appeals Judge Richard Dinkins, remarks by Mattielyn Williams, co-chair of the TBA's Committee on Racial and Ethnic Diversity, and a panel discussion with lawyers representing a range of practice areas and settings. Read more about the program and see photos.


Maury Lawyer Censured for Discharging Weapon in Public

Maury County lawyer Martha Jane Durocher was censured by the Board of Professional Responsibility after she discharged a weapon in public and entered a guilty plea to the Class A misdemeanor of reckless endangerment and the Class C misdemeanor of unlawful possession of a weapon. The board determined that her actions violated Rule of Professional Conduct Rule 8.4 (b). Download the BPR notice.


Law Schools Team up for 3 Immigration Clinics

The Immigration Clinic at the University of Tennessee College of Law and the Lincoln Memorial University Duncan School of Law will host three immigration clinics in the eastern part of the state beginning tomorrow. The events will be held in conjunction with Centro Hispano. Dates are Jan. 25 at Centro Hispano in Knoxville from 9 a.m. to noon; Feb. 22 in Lonsdale; and March 15 in Morristown. For more information or to to get involved, contact Tennessee professor Karla McKanders, (865) 974-5710.


ABA Offers Retirement Benefits for the Legal Sector

Looking for a retirement plan for yourself or your employees? The ABA Retirement Fund provides unique, full service 401(k) plans specifically for the legal community. By leveraging the assets of its 3,800 client firms, the ABA plan offers packages typically available only to large corporations. For more information contact a regional representative at (800) 826-8901 or visit www.abaretirement.com.


 
 

Questions, comments: Email us at TBAToday@tnbar.org

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.


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